BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       AB 1310|
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                                   THIRD READING 


          Bill No:  AB 1310
          Author:   Gatto (D)
          Amended:  7/7/15 in Senate
          Vote:     21  

           SENATE PUBLIC SAFETY COMMITTEE:  7-0, 6/30/15
           AYES:  Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone

           SENATE APPROPRIATIONS COMMITTEE:  7-0, 8/27/15
           AYES:  Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen

           ASSEMBLY FLOOR:  79-0, 5/14/15 - See last page for vote

           SUBJECT:   Disorderly conduct: unlawful distribution of image


          SOURCE:    Attorney General of California

          DIGEST:  This bill provides that jurisdiction for trial of the  
          crime of distribution of a sexual image in violation of an  
          agreement that the image shall remain private and (cyber sexual  
          exploitation) shall include the county in which the offense  
          occurred, the county in which the victim resided at the time of  
          the offense, or the county in which the intimate image was used  
          for an illegal purpose; provides that where the same defendant  
          or defendants commit cyber sexual exploitation crimes in more  
          than one county, and the crimes are part of a scheme or involve  
          substantially similar acts, the charges can be tried in a single  
          county; provides that a search warrant for electronic  
          communications and records can include communications between a  
          service provider and a customer, as specified; and specifies  
          procedures, standards and limitation for obtaining and serving  
          search warrants for electronic communications and computer  








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          service information.

          ANALYSIS:
          
          Existing law:

           1) Provides that a defendant who intentionally distributes the  
             image of the intimate body part of another identifiable  
             person, or an image of the person engaged in an act of sexual  
             intercourse, sodomy, oral copulation, sexual penetration, or  
             an image of masturbation involving the person depicted, and  
             the defendant and the person depicted agree or understand  
             that the image shall remain private, the person distributing  
             the image knows or should know that distribution of the image  
             will cause serious emotional distress, and the person  
             depicted suffers that distress is guilty of disorderly  
             conduct, a misdemeanor, punishable by a jail term of up to  
             six months, a fine of up to $1,000, or both.  For a second or  
             subsequent conviction, or where the victim is a minor, the  
             maximum jail term and fine is one year and $2,000  
             respectively.  (Pen. Code §§ 647, subds. (j)(2)-(3) and (l).)

           2) Includes the following definitions:

              a)    "Distribution" means that the defendant personally  
                distributed the image, or arranged, requested, or  
                intentionally caused another person to distribute that  
                image; (Pen. Code § 647, subd. (j)(4)(B).)

              b)    "Intimate body part" means the genitals, anus, and in  
                the case of a female, any portion of the breasts below the  
                top of the areola, that is either uncovered or clearly  
                visible through clothing.  (Pen. Code, § 647, subd.  
                (j)(4)(C).)

           3) Provides that distribution of an intimate image in violation  
             of a privacy agreement is not a crime if any of the following  
             applies:

              a)    The distribution is made in the course of reporting an  
                unlawful activity.  

              b)    The distribution is made in compliance with a subpoena  
                or other court order for use in a legal proceeding.







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              c)    The distribution is made in the course of a lawful  
                public proceeding. (Pen.Code, § 647, subd. (j)(4)(D).)

           4) Provides that it is an alternate felony-misdemeanor for a  
             person to willfully obtain the personal identifying  
             information of another person and to use such information to  
             obtain, or attempt to obtain, credit, goods, or services in  
             the name of the other person without consent.  A felony  
             sentence for identity theft is to be served in a county jail  
             pursuant to Penal Code Section 1170, subdivision (h), unless  
             the defendant is disqualified from a jail term because he or  
             she has suffered a serious felony conviction or is required  
             to register as a sex offender.  (Pen. Code § 530.5, subd.  
             (a).)

           5) Defines "personal identifying information" as a name,  
             address, mother's maiden name, place of employment, date of  
             birth, unique biometric data, facial scan, or other unique  
             physical representation or data including and numerous  
             others.  (Pen. Code § 530.55.)

           6) Provides that the proper jurisdiction - venue - for a crime  
             is in a court in the jurisdiction where the crime was  
             committed and that when a crime is committed partly in one  
             county and party in another, trial can be held in either  
             county.  (Pen. Code §§ 777 and 781.)

           7) Provides that charges of identity theft can be filed in the  
             county where the theft of the personal information occurred  
             or the county where the information was used illegally.   
             Where multiple identity theft crimes involving the same  
             defendant and the same victim occur in multiple  
             jurisdictions, any one of those jurisdictions is a proper  
             jurisdiction for trial of all charges.  (Pen. Code § 786,  
             subd. (b)(1).)

           8) Provides that where multi-county identity theft crimes  
             involving the same defendants and the same victim are filed  
             in a single county, the court shall determine if that county  
             is the proper place for trial, or whether some charges should  
             be filed in another county, as specified.  (Pen. Code § 786,  
             subd. (b)(2).)








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           9) Provides that a search warrant may be issued upon any of the  
             following grounds:

              a)    The property was stolen or embezzled;

              b)    The property was used as to committing a felony; 

              c)    A person possesses the property with the intent to  
                commit a crime, or the property is being held for purpose  
                of concealing them or preventing them from being  
                discovered;

              d)    The property or things to be seized consist of any  
                item or evidence that tends to show that a felony has been  
                committed; 

              e)    The property consists of evidence of sexual  
                exploitation of a child or possession of child  
                pornography; 

              f)    There is a warrant to arrest a person; 

              g)    A provider of electronic communication or remote  
                computing service has records or evidence showing that  
                property was stolen or embezzled constituting a  
                misdemeanor, or that property or things are possessed by  
                any person with the intent to commit a misdemeanor, or for  
                the purpose of concealment;

              h)    The things to be seized include evidence of failure  
                secure workers compensation; 

              i)    The property includes a firearm or deadly weapon and  
                specified circumstances related to domestic violence,  
                examination of a person's mental condition; protective  
                orders, apply;

              j)    The information to be received from the use of a  
                tracking device tends to show a felony or misdemeanor  
                violation of the Fish and Game Code, or a misdemeanor  
                violation of the Public Resources Code ;

              aa)   A driving under influence suspect has refused to  
                submit or complete, a blood test as required, as limited  







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                and specified; or

              bb)   The property is a firearm or ammunition and a gun  
                violence restraining order applies.  (Pen. Code § 1524,  
                subd. (a)(1)-(14).)

           10)Provides that the property seized in a search warrant may be  
             taken from any place, or from any person in whose possession  
             the property or things may be. (Pen. Code, § 1524, subd.  
             (b).)

           11)Provides that when the property or things constitute  
             evidence of identity theft, the warrant may authorize a  
             search in another county if the person whose identifying  
             information was taken or used resides in the same county as  
             the issuing court. (Pen. Code § 1524, subd. (j).)

           12)States that a provider of an electronic communication or  
             remote computing  shall, pursuant to a warrant, disclose to a  
             prosecuting or investigating agency the name, address,  
             telephone number or subscriber identity, billing records and  
             length and types of services.   (Pen. Code §§ 1524.3, subds.  
             (a)-(b).)

           13)Allows a court issuing a search warrant as to an electronic  
             communication or remote computing service, to grant a motion  
             to quash or modify the warrant if the records sought are  
             unusually voluminous or compliance would cause an undue  
             burden on the provider.  (Pen. Code§  1524.3, subd. (c).)

           14)States that a provider of electronic communication or remote  
             computing services, upon the request of a peace officer,  
             shall take all necessary steps to preserve records and  
             evidence in its possession pending the issuance of a warrant  
             or through a written request and affidavit declaring an  
             intent to file a warrant.  Records shall be retained for a  
             period of 90 days, with a 90-day extension upon a renewed  
             request.  (Pen. Code § 1524.3, subd. (d).)

          This bill: 

           1) Expands the jurisdiction of trial for unauthorized  
             distribution of a sexual image to include the county in which  
             the offense occurred, the county in which the victim resided  







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             at the time the offense was committed, or the county in which  
             the intimate image was used for an illegal purpose.

           2) Allows prosecution in any of the jurisdictions when multiple  
             offenses of unauthorized distribution of an intimate image,  
             either all involving the same defendants or defendants and  
             the same intimate image belonging to the one person, or all  
             involving the same defendant or defendants and the same  
             scheme of substantially similar activity, occur in multiple  
             jurisdictions.

           3) Requires the court to determine the proper place of trial,  
             as specified.

           4) Requires the district attorney filing the complaint to show  
             that the district attorney in each county where the charges  
             could have been filed has agreed that the matter should  
             proceed in the county of filing.

           5) Requires the court to hold a hearing on its own motion, or  
             the motion of the defendant, to determine whether the county  
             of the victim's residence is the proper venue for trial, when  
             an action for unauthorized distribution of an intimate image  
             is filed in the county in which the victim resided at the  
             time the offense was committed and no other basis for the  
             jurisdiction applies. In ruling on the matter the court shall  
             consider the rights of the parties, the access of the parties  
             to evidence, the convenience to witnesses, and the interests  
             of justice

           6) States that a provider of electronic communication service  
             or remote computing shall disclose to the contents of  
             communication originated by or addressed to the service  
             provider when the governmental entity is granted a search  
             warrant, in addition to the subscriber records, and service  
             and billing information allowed under current law.

           7) Requires that the search warrant be limited to information  
             necessary to achieve the objective of the warrant, including  
             by specifying the targeted individuals or accounts,  
             applications or services, the types of information, and the  
             time periods covered by the warrant. 

           8) Specifies that information obtained through the execution of  







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             the warrant pursuant that is unrelated to the objective of  
             the warrant shall be sealed and not subject to further review  
             without a court order. 

           9) Requires notice to a subscriber or customer upon receipt of  
             the records by the governmental entity that obtained the  
             warrant.

           10)Authorizes the court to delay notification, in 90-day  
             increments, upon showing that there is reason to believe that  
             notification of the warrant may have an adverse result,  
             including:  endangering someone's life or safety , flight  
             from prosecution, destruction of or tampering with evidence,  
             intimidation of a witness; harm to the investigation or delay  
             of trial.

           11)Requires, upon expiration of any delay of notification, the  
             governmental entity to provide to the customer by regular  
             mail or e-mail a copy of the request and the following:

              a)    Statement of the nature of the law enforcement  
                inquiry; 

              b)    Notice that information maintained for the customer by  
                the service; provider was requested by and supplied to the  
                governmental authority;

              c)    The date of the request and information supplied;

              d)    Disclosure of any delay in notification; 

              e)    The court that issued the order; and 

              f)    A written inventory of the property that was taken.

          Background
          
          The proper place of trial is generally the county in which the  
          crime occurred.  However, an identity thief can use a victim's  
          information across the state.  Since 2002, trial of identity  
          theft crimes that occurred in multiple counties and involved a  
          single victim may be held in a single county.  Such cases could  
          give rise to overlapping prosecutions, leading to numerous  
          problems, including investigation and evidence collection  







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          problems, claims that the first prosecutor to file charges  
          should have resolved all charges arising out of an incident and  
          others.  To address such concerns, the applicable venue section  
          was amended to direct a court to consider whether all charges  
          should be tried in one county, or whether some charges should be  
          severed and tried in a different county.  

          Legislation in 2009 addressed another relatively common  
          situation - the same defendants are involved in an identity  
          theft scheme that involved numerous victims in more than one  
          county.  Where a common scheme is involved, evidence from each  
          incident or crime is typically admissible as to each offense.   
          Requiring separate prosecution in each county where related  
          identity theft cases occurred could result in presentation of  
          the same evidence in each county resulting in a waste of  
          judicial, prosecution and defense resources.

          Similar issues or considerations apply to cases involving cyber  
          porn revenge or exploitation.  Under existing law in cyber porn  
          revenge cases, the defendant and prosecutors could spend a great  
          deal of time and expense negotiating dispositions that reach  
          across county lines.  Numerous prosecutions can be filed,  
          wasting judicial resources and inconveniencing witness. 

          While specifically granting the authority for the government to  
          obtain the contents of electronic communications between the  
          subscriber and the service provided in misdemeanor cases, this  
          bill includes a fairly long list of procedures and limitations  
          applicable in these matters.  In particular, this bill requires  
          that the information sought be limited to that necessary to the  
          objective of the warrant, that unrelated information be sealed  
          and that notice be given unless specified adverse consequences  
          could occur.  

          The author has explained that this bill would have originally  
          allowed a warrant for the search of a suspect's home computer.   
          To address arguments that execution of a warrant at a person's  
          home was too great an intrusion for a misdemeanor prosecution of  
          cyber-porn revenge or exploitation, the bill was amended to  
          authorize a warrant served on a service provider for the  
          contents of the suspect's communications with his or her service  
          provider.  As noted above, the amendments also included a number  
          of protections for the target of the investigation and service  
          providers.







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          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No

          According to the Senate Appropriations Committee:

           Expanded jurisdictional authority:  Potential cost savings in  
            judicial, prosecutorial, and defense counsel resources to the  
            extent the expanded jurisdictional authority eliminates the  
            need to conduct separate proceedings in more than one county. 

           Noticing requirements:  Potential minor to moderate increase  
            in local costs, potentially in excess of $50,000 statewide, to  
            local law enforcement agencies for those noticing provisions  
            in this bill that exceed requirements under existing state and  
            federal law. To the extent local agency expenditures qualify  
            as a reimbursable state mandate, agencies could claim  
            reimbursement of those costs (General Fund). Costs would be  
            dependent on various factors including but not limited to the  
            number of persons requiring notice, both contemporaneously and  
            under the delayed noticing provisions, time/workload required  
            per notice, and the method of noticing used.


          SUPPORT:   (Verified 8/28/15)


          Attorney General of California (source)
          Association of Deputy District Attorneys
          Association for Los Angeles Deputy Sheriffs
          California District Attorneys Association
          California Police Chiefs Association
          California Statewide Law Enforcement Association
          Crime Victims United of California
          Los Angeles Police Protective League
          Peace Officers Research Association of California
          Riverside Sheriffs Association


          OPPOSITION:   (Verified 8/28/15)


          California Attorneys for Criminal Justice
          California Public Defenders Association







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          ASSEMBLY FLOOR:  79-0, 5/14/15
          AYES:  Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,  
            Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,  
            Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle,  
            Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina  
            Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,  
            Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,  
            Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder,  
            Lopez, Low, Maienschein, Mathis, McCarty, Medina, Melendez,  
            Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson,  
            Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas,  
            Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner,  
            Waldron, Weber, Wilk, Williams, Wood, Atkins
          NO VOTE RECORDED:  Mayes

          Prepared by:Jerome McGuire / PUB. S. / 
          8/31/15 17:15:06


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